Construction, Forestry and Maritime Employees Union

[2024] FWCD 1030

[2024] FWCD 1030

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Construction, Forestry and Maritime Employees Union

(R2024/44)

CHRIS ENRIGHT MELBOURNE, 6 JUNE 2024

Alteration of other rules of organisation.

1. On 28 March 2024 the Manufacturing Division of the Construction, Forestry and Maritime Employees Union (the Division) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the alterations was lodged on 30 May 2024.

1. The Division seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. The particulars set out alterations to Rules 11, 13, 14, 28, 30, 32 and 37.

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The proposed alterations:

   ·   clarify the removal from office provisions;[1]

   ·   allow the Divisional Executive to determine—prior to the opening of nominations in each quadrennial election—whether there shall be a Divisional Senior Assistant Secretary and/or one or two Divisional Assistant Secretaries. Under the current rules there is a Divisional Senior Assistant Secretary and up to two Divisional Assistant Secretaries;[2]

   ·   remove a redundant reference to a special TFC fund established on an interim basis when the Textile, Clothing and Footwear Union of Australia (TCFUA) amalgamated with the Construction, Forestry, Mining and Energy Union.[3] That fund has not been separately administered since 31 December 2022.[4]

   ·   make it clear that members placed on the Unemployed Members list are not eligible to hold office;[5]

   ·   remove a reference to continuous membership in the Unemployed Members rule;[6]

   ·   remove a redundant reference to a second Joint President of the Victorian District. By its terms, the office was supposed to exist for a single 4-year term which commenced in 2017;[7]

   ·   remove the office of TCF Assistant Secretary from the Division’s Victorian District’s District Management Committee, reducing the number of offices reserved for former members of the TCFUA from two to one.[8] The District Management Committee is the highest deliberative body of the District. It manages and superintends the affairs of the District.[9] It currently comprises 18 offices (inclusive of vacancies).[10] Reducing the number of reserved offices coincides with fewer members in the Victorian District formerly being eligible to be members of the TCFUA.[11] The office of TCF Assistant Secretary remains a full time paid office.[12] Among other things, the office forms part of the Victorian District Executive.[13] The District Executive carries out duties it is directed to perform by the District Management Committee.[14]

   ·   clarify the qualifications required to nominate for various Divisional offices. These alterations are said to be consistent with the findings of Justice Wheelahan in Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3);[15]

   ·   make it clear that the current terms of office in the Division are four years.[16] COVID-19 related delays meant the current office holders took up office later than provided for under the rules;

   ·   clarify when various steps in the next scheduled election occur.[17] The relevant dates in the current rules are no longer accurate; COVID-19 related delays meant the current office holders took up office later than provided for under the rules;

   ·   render ineligible for office in the Division Construction, Forestry and Maritime Employees Union members who hold office in—or are employed by—another Division;[18] and

   ·   clarify the way shop stewards are elected and the fact they are subject to the direction of their District and Division.[19]

1. On 30 May 2024 the Division’s Solicitor, Mr Geoff Borenstein, provided the Division’s consent under subsection 159(2) of the Act for me to amend the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:

   ·   In proposed rule 30 A. (i) the second, unnumbered paragraph will read:

   “on and from no later than 2 January 2019, the Victorian District shall additionally have a TCF Full Time Officer.”

1. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] See the proposed alterations to Rule 11.

[2] See the proposed alterations to Rule 13.

[3]See the proposed alterations to Rule 14

[4] See current Rule 14 E.(v). I note that rule is among those proposed to be deleted by the current alterations.

[5] See the proposed alterations to Rule 28.

[6] Ibid.

[7] See the proposed alterations to Rule 30.

[8] Ibid.

[9] See Rule 30 A.(iii).

[10] See the most recent annual return of information lodged under s.233 of the Act, AR2024/2 at page 80.

[11] From 1 January 2019 those members were transferred to the Division’s Green Triangle District- see Rule 44 X. 2. (b).

[12] See Rule 31(g).

[13] See Rule 30 B..

[14] Ibid.

[15] [[2021] FCA 1263]. See the proposed alterations to Rule 32. See also Schedule B to Divisional Secretary Michael O’Connor’s 28 March 2024 Declaration at pages 22 – 23 of that declaration.

[16] See the proposed alterations to Rule 32.

[17] Ibid.

[18] Ibid.

[19] See the proposed alterations to Rule 37.

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